Shiv Charan vs Nawal and Ors.

R. A. Sharma, J.—Appellant filed a contempt petition under the Contempt of Courts Act (hereinafter referred to as the Act) which has been dismissed and the notices issued to the opposite parties have been discharged by the learned Single Judge. The order passed by the learned Single Judge is reproduced below:

"Sri Yogesh Agarwal for the applicant and Sri Janardan Sahai for the opp. parties are present.

This proceedings under the contempt of court Act has been initiated for the alleged disobedience of the order dated 251192, which reads as under

"Issue notice.

Until further order of this court, if the petitioner is in possession, he will not be dispossessed in pursuance of the impugned orders dated 30190 and 31 792 passed by respondent No. 1.

It is admitted by the learned counsel for both the parties that on the date on which this order was passed only the consolidation authorities were the parties to the writ petition and the non applicant Nos. 1 to 10 were impleaded later on. Therefore, it is obvious that the order was intended to prevent the consolidation authorities to hand over possession of the plots in question in pursuance of the order dated 301190 and 31792.

It is urged by the learned counsel for the petitioner that even those persons who were not arrayed as parties are expected to honour the order and they can be held guilty of contempt of c, irt.

It is not necessary to examine this contention. In a fit case, the court may proceed against the persons who were not parties.

In view of the facts and circumstances of the present case, this court is not inclined to take action against the persons who were not arrayed as parties at the time when the order was passed.

In this view of the matter, the application for contempt is dismissed and the notices issued to the opposite parties are discharged."

Being aggrieved, the appellant has filed this appeal.

The Act has made provision for appeal in Section 19, which is reproduced below:

"19. Appeals.(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt :

(a) Where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court;

(b) Where the order or decision is that of a Bench, to the Supreme Court:

Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.

(2) Pending any appeal, the appellate Court may order that

(a) the execution of the punishment or order appealed against be suspended;

(b) if the appellant is in confinement, he be released on bail, and

(c) the appeal be heard notwithstanding. Lal the appellant has not purged his contempt.

(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by subsection (2).

(4) An appeal under subsection (1) shall be filed

(a) in the case of an appeal to a Bench of the High Court within thirty days;

(b) in the case of an appeal to the Supreme Court, within sixty days,

from the date of the order appealed against."

Under Section 19 appeal lies against the decision/order by which punishment for contempt has been imposed. In this connection reference may be made to State of Maharastra v. Mahboob S. Allibhoy, (1996)4 SCC 411, wherein the Supreme Court has laid down as follows:

"On a plain reading Section 19 provides that an appeal shall lie as of right from any order or decision of the High Court in exercise of its jurisdiction to punish for contempt. In other words, if the High Court passes an order in exercise of it jurisdiction to punish any person for contempt of court, then only an appeal shall be maintainable under sub section (1) of Section 19 of the Act. As subsection (1) of Section 19 provides that an appeal shall lie as of right from any order, an impression is created that an appeal has been provided under the said subsection against any order passed by the High Court while exercising the jurisdiction of contempt proceedings. The words, ''any order'' has to be read with the expression ''decision'' used in the said subsection which the High Court passes in exercise of its jurisdiction to punish for contempt. "Any order" is not independent of the expression ''decisions. They have been put in an alternative form saying ''order'' or ''decisions. In either case, it must be in the nature of punishment for contempt."

As the learned Judge has dismissed the contempt petition and discharged the notices, appeal under Section 19 of the Act is not maintainable.

The learned counsel for the appellant has, however, submitted that he has filed the present appeal not under Section 19 of the Act but under Rule 5 of Chapter VIII of the High Court Rules (hereinafter referred to as the Rules) and, therefore, this appeal is maintainable. It is not possible to agree with the learned counsel.

Rule 5 of Chapter VIII under which an appeal can be filed before a Division Bench from a judgment, not being a judgment specified therein, of one Judge, is reproduced below:

"5. Special Appeal.An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award : (a) of a tribunal Court, or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one judge."

The question is whether appeal from a decision of single Judge given in exercise of the powers conferred by the Act is maintainable under the Rules of the High Court even though the Act itself has provided for appeal from such a decision.

In National Telephone Co. Ltd. v. Post Master General, (1913) AC. 546 (H.L.), it was laid down thus:

"When a question is stayed to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches."

At page 562 the same rule was reiterated as under:

"Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remains the same."

The above rule has been followed by the English Courts in subsequent cases and has also been accepted as correct by the Supreme Court in N. S. Thread Co. v. James Chadwick and Brothers, AIR 1953 SC 357. The Supreme Court has followed the said rule in subsequent cases also. Reference may be made to Collector, Varanasi v. Gauri Shanker Misra, AIR 1968 SC 384 and'' Maganlal v.Jaiswal Industries, AIR 1989 SC 2113. But the aforementioned rule will apply only in those cases where the jurisdiction is conferred on an established Court "without more" or "with no further provision." If the statute, which has conferred the jurisdiction on the Court, itself lays down procedure, and provides for appeal from its decision, the appeal can be filed only under and in accordance with such a statute. In such a case the ordinary/general right of appeal from the decision of the Court stands taken away/excluded by the statute, which has conferred the jurisdiction on the Court.

Supreme Court in South Asia Industries (P) Ltd. v. S. B. Sarup Singh and others, AIR 1965 SC 1442, after considering the relevant caselaw, has in this connection laid down as under:

"The following legal position emerges from the said discussion : A statute may give a right of appeal from an order of a tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under S. 108 of the Government of India Act, 1915, an appeal under S. 39 of the Act will be heard by a single Judge. Any judgment made by the single Judge in the said appeal will, under Cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order made by a single Judge is a judgment and if the appropriate Legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single jurisdiction under Cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent appeal an appeal shall certainly lie from the judgment of the single Judge to the High Court."

The settled position is that the ordinary/general right of appeal can be taken away/excluded expressly or by necessary implication by the statute, which has conferred jurisdiction on the court. Ordinary right of appeal from decision stands taken away if the court''s decision has been made final by the statute or when the statute is a self contained code. The same will be the position if the statute expressly bars the appeal. In South Asia Industries (P) Ltd. v. S.B. Sarup Singh and others, AIR 1965 SC 1442 (supra), it was held that when the statute makes the decision of the court final, it imposes total bar against the appeal from such decision. Accordingly appeal, under Letters Patent from a decision of a single Judge given under Delhi Rent Control Act was declared as not maintainable. In Upadhyaya Hargovind Devshanker v. Dhirendrasinh Vvrbhadrasinhi Solanki and others, AIR 1988 SC 915, Supreme Court held that no appeal under Letters Patent against the decision of a single Judge given under Representation of People Act is maintainable, because the said Act is a selfcontained Code regarding the matters relating to settlement of election disputes. The decisions by this Court in Siya Ram v. Nathuram, 1968 ALJ 576, and by the High Court of Rajasthan in Ramdhan v. BhanwarLal, AIR 1985 Raj 185 (F.B.), which have taken the similar view, were approved by the Supreme Court in the said case. In Union of India v. Mohindra Supply Co., AIR 1962 SC 256 one of the ground on which the Supreme Court rejected the claim of appeal under the Letters Patent against the decision of a single Judge under Section 39(1) of the Arbitration Act was subsection (2) of Section 39 of the Arbitration Act was subsection(2) of Section 39 of the said Act by which the further appeal from such a decision was barred.

The right of appeal under any other law against a decision of a court is also taken away if the statute, which has conferred the jurisdiction on the Court, has itself provided for an appeal from such a decision. The reason is that the rule that when a jurisdiction is conferred on a court, it imports the ordinary incidents of the procedure of that court including the right of appeal from its decision will not apply if the statute which has conferred the jurisdiction has itself made provision for appeal from the decision of such Court. As the Act has provided for appeal from order/decision given there under, an appeal under Rule 5 of Chapter VIII of the Rules from such a decision is barred. A Division Bench of this Court in Ved Prakash Kapoor and others v. Kamla Prasad Rai (Special Appeal No. 316 of 1995, decided on 2341997) has also held that an appeal filed against an order passed under the Act is not maintainable under Rule 5 of Chapter VIII.

The Contempt of Courts Act was enacted "to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto" The Supreme Court in Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904 has held that after enforcement of the Act the procedure laid down therein will govern the contempt proceedings before the High Court. The relevant extract of said decisions reproduced below:

"Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemner to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List HI in exercise of which the Parliament has enacted the Act, 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be ''Courts of Record1 under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment.

The Act had defined "contempt", laid down procedure and has placed limitation on the powers of the courts. By Section 19, the Act has created a right of appeal from an order or decision of the Court imposing punishment for contempt. There is no provision for appeal under the Act against the decision discharging the notice of contempt and/or dismissing the contempt petition. When statute provides for appeal and also lays down the orders/decisions against which such an appeal can be filed, the legislature''s intention is that appeal against all other orders is barred. As Section 19 has provided for appeal against an order or decision imposing punishment for contempt, the right to file an appeal against all other orders has been taken away by the statute. The result is that the appeal against a decision, rejecting the contempt petition is not maintainable under Rule 5 of Chapter VIII also.

Two decisions of Supreme Court in State of West Bengal and others v. Kartick Chandra Das and others, AIR 1996 SC 2437 and Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904 on which reliance has been placed by the learned counsel for the appellant are of no help to him. In State of West Bengal and others v. Kartick Chandra Das and others (supra) the question before the Supreme Court was whether Section 5 of the Limitation Act can be applied to appeal filed against the order of single Judge passed in contempt jurisdiction. Supreme Court answered the said question in affirmative. The submission of the learned counsel for the appellant is that as in the above case the appeal was filed under Letters Patent against the order of single Judge passed in contempt jurisdiction and as the Supreme Court has held that Section 5 of the Limitation Act is applicable to the said appeal, it should be presumed that the Supreme Court has decided that appeal against the judgment of single Judge, rejecting the contempt petition is maintainable under Letters Patent/Rules of the Court. This submission cannot be accepted. The question involved in the present case regarding the maintainability of the appeal under the Letters Patent/Rules of the Court against the decision of single Judge rejecting the contempt petition was neither raised before the Supreme Court nor was it decided by it. Therefore, this decision is not an authority for holding that against the order rejecting the contempt case an appeal can be filed under Rules of the Court. Supreme Court in State of Orissa v. Sudhansu Sekhar Misra and others, AIR 1968 SC 647 has declared that:

"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not ever)'' observation found therein nor what logically follows from the various observations made in it."

The same principle was reiterated in Ambica Quarry Works etc. v. State of Gujrat and others, AIR 1987 SC 1073. Similar is the position with regard to the case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904, (supra). In that case also the controversy involved in the present case was not here.

Learned counsel for the respondents has, however, submitted that as no appeal lies under Section 19 of the Act from the decision of single Judge, dismissing the contempt petition, the applicant will be rendered remediless, if his appeal under Rule 5 of Chapter VIII is not held maintainable. This submission is also devoid of merit. In State of Mahrashtra v. Mahboob S. Allibhoy and another, ''(1996)4 SCC 411, (supra) the Supreme Court has reiterated the rule that a contempt proceeding is not a dispute between the two parties and such a proceeding is a matter between the Court and the person, who is alleged to have committed contempt. The relevant passage from the said judgment is as under:

"It is well known that contempt proceeding is not a dispute between two parties, the proceeding is primarily between the court and the person who is alleged to have committed the contempt of Court. The person who informs the court or brings to the notice of the court that anyone has committed contempt of such court is not in the position of a prosecutor, he is simply assisting the court so that the digrity and the majesty of the court is maintained and upheld. It is for the court, which initiated the proceeding to decide whether the person against whom such proceeding has been initiated should be punished or discharged taking into consideration the facts and circumstances of the particular ease."

The applicant is also not without remedy. He can challenge the decision of a Judge rejecting the contempt petition before the Supreme Court under Article 136 of the Constitution of India.

For the reasons given above, this appeal is dismissed as not maintainable. In view of the facts and circumstances of the case, there shall be no order as to costs.